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Those Who Hire Foreign Workers See Maze of Red Tape This Year

Peter Martell, owner of the Wesley Hotel in Oak Bluffs, is in deep trouble with his summer staffing. He opens for the season next month, and he has just learned he will not get the staff he needs to make the place run.

"I'm opening May 3 and I've got three desk clerks and I need seven. I don't know where the other four are coming from. I need five chambermaids; I've got two," he said.

Mr. Martell is a loser in what he and other seasonal employers see as an annual game of chance, the H-2b visa system which allows them to bring in foreign labor to perform seasonal jobs that cannot be filled with local workers.

The process has been rendered even more chancy this year by processing delays at the U.S. Labor Department offices in Atlanta, Ga., which have seen many employers not allocated the staff they need, or getting their allocation so late they have to open late for the season.

Mark Carchidi, president and operations director of Antioch Associates in Yarmouth Port, which brings in some 750 to 1,000 foreign workers each year for various seasonal employers from Maine to Pennsylvania, estimates only about one third of employers have navigated the system without trouble this year.

"Anywhere from one third to two thirds of seasonal employers would be affected by this either because they cannot get their new workers in or have been unable to meet their starting dates because of the delay," he said.

Under the H-2b system, 66,000 overseas workers are granted visas each year for seasonal areas - 33,000 for winter seasonal areas and 33,000 for summer areas.

All 33,000 places allocated under the cap for summer seasonal workers were filled by March 16, according to the U.S. Citizenship and Immigration Services Web site.

The system is complicated, involving three layers of bureaucracy, Mr. Carchidi explained.

"The requirements of the program are that an employer files an application in the first instance with the state office of the department of labor, requesting they be certified as having a seasonal need," he said, continuing:

"Once the advertising is done, then the state department of labor office will send a request to the regional office of the U.S. department of labor, where they request the employer be certified.

"Timing-wise, that's where the hang-up is this year.

"Prior to last year it would have been a matter of the state office literally walking it across the street to the federal department of labor and the federal department which would then act on it.

"But two years ago they centralized it and took all the state offices out and moved it all to Atlanta, Georgia. So Atlanta is now responsible for handling all applications and approvals for the entire East coast.

"Last year, at its peak, Atlanta was taking anywhere from four to a maximum of six weeks to issue their determinations. This year, it's an atrocity. They're taking up to 16 weeks."

The third step of the process, Mr. Carchidi said, was to "take that piece of paper with a fancy blue stamp on it, saying Department of Labor, and file a petition with the Department of Homeland Security, United States Citizenship and Immigration.

"And the petition gets filed in Vermont. The DHS has 15 days to act on that petition. They either have to accept it and approve those people or deny them, and they can't come.

"The problem is because of the delay in Atlanta in processing these things, that petition that goes to Vermont cannot be filed."

Not that every petition could be expected to be approved, of course, under a capped system. But what really angers employers, Mr. Carchidi said, is that Atlanta appeared not to process applications in the order in which they arrived.

"It has never been the luck of the draw before. It's always been they've processed them as they receive them."

Mr. Martell's experience serves as a case study in what can go wrong in the complicated process of getting overseas seasonal workers.

"I sent my stuff off in November, as I'm supposed to," he said. "It went to the state department [of labor], was processed in a timely fashion, and sent to the federal department.

"Mine was sent down [to the regional office of the department of labor in Atlanta] Dec. 11; I haven't seen it yet. Now the quota is filled."

Mr. Martell will be able to bring in five foreign staff workers who have previously worked for him, because returning workers are exempted from the cap. "But the six more I wanted I will not get," he said.

Mr. Carchidi said: "I had one client whose paperwork was shipped from the state office down to Atlanta on Dec. 8. They got their determination March 26. I had other clients that filed after him, and had starting dates after his, and they were approved, issued and granted and their employees were virtually on the plane to come here . . ."

But one of Martha's Vineyard's biggest employers of foreign seasonal staff had no problems with the H-2b system this year. Dick McAuliffe, general manager for the Harbor View and Kelley House in Edgartown, was lucky.

"Off the top of my head, we have probably got about 150 employees over the summer under the H2b visa program and the majority are returning employees," Mr. McAuliffe said. "We have a lot of returning seasonal staff. We also did fill out a petition for new employees. And all of those were granted."

Arthur D. Smith, an Island attorney who handles between 40 and 60 H-2b visas for various employers, acknowledged the system had been slow this year, but he said the vast majority of the employees being brought in were returning, and therefore exempt from the cap.

"We're in the final stages now. No one has actually come yet. We've lost four [workers]. The labor certification is changed every year, and they don't really tell you about it, so you've really got to stay on top of it," Mr. Smith said, adding:

"We recommend people find returnees, so they don't run into this problem."